This week on Legally Speaking with Michael Mulligan:
The leaked draft decision on abortion from the US Supreme Court has raised questions concerning the law in Canada.
For 100 years in Canada, from 1869 until 1969, having or performing an abortion was a criminal offence in Canada.
In 1969 the Criminal Code was amended to permit abortions but only when a committee of doctors certified that a woman’s life or health was in danger. As “health” was not defined, the interpretation of this exception was inconsistent between hospitals.
Dr. Morgentaler was an abortion advocate and openly acknowledged performing hundreds of abortions without the approval of a committee of other doctors. He was repeatedly charged with performing abortions but was acquitted on each occasion by juries.
Juries are not required to give reasons for their verdict and can apply community standards to criminal prosecutions by refusing to convict.
Crown Counsel appealed one of the jury acquittals, and the Quebec Court of Appeal substituted a conviction. This resulted in public outrage and eventually the “Morgentaler Amendment” to the Criminal Code, which, in 1975, removed the authority of Courts of Appeal to enter a conviction where a jury finds someone not guilty. Following this amendment, a Court of Appeal can only order a new trial.
Also, in 1975, Dr. Morgentaler appealed his conviction to the Supreme Court of Canada, arguing that the criminal code law restricting abortion was unconstitutional. Because this was prior to the Canadian Charter of Rights and Freedoms, he was unsuccessful. The Supreme Court of Canada held that the law was valid. This decision was two years after the US Supreme Court decided Roe vs. Wade.
In 1988 Dr. Morgentaler was back in the Supreme Court of Canada, again arguing that the 1969 Criminal Code restrictions on abortion were unconstitutional. This time, he was successful.
The Charter became part of the Canadian Constitution in 1982. As a result, in 1988, a majority of the Supreme Court of Canada found that the abortion offence in the Criminal Code violated section 7 of the Charter, which guarantees that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Conservative governments made two subsequent attempts to pass legislation to restrict abortion. The second attempt passed in the House of Commons but resulted in a tie vote in the Senate. Pursuant to the rules of the Senate, a tie vote does not pass, and, as a result, the new Criminal Code restrictions on abortion did not become law.
As a result, there are no federal laws in Canada restricting abortion, and it is dealt with like any other medical procedure.
Also, on the show, a protester charged with criminal contempt for allegedly breaching an injunction relating to blocking logging in the Fairy Creek area was found not guilty. The Crown must prove that the accused knew about the injunction to be convicted of criminal contempt.
While the injunction was posted on the internet, there was no evidence the accused had seen it.
The man was not physically blocking the road to the logging area. Instead, he crossed the road twice while banging a drum.
The RCMP had read out a summary of the injunction telling people they couldn’t blockade the road. The accused was arrested 15 seconds later.
There wasn’t evidence that the accused had been told the injunction prohibited him from crossing the road.
Finally, the legal approach to assessing the credibility of an accused person in a criminal case is discussed.
An automated transcript of the show:
Legally Speaking May 6, 2022
Adam Stirling [00:00:00] The time for Legally Speaking. Joined by Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Morning, Michael. How are you?
Michael T. Mulligan [00:00:06] Good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:09] Some really interesting stories in the news at the moment, including the American discourse about a leaked draft decision by the majority of the court regarding the Roe v Wade case. Now, just about everybody’s heard the term Roe v Wade. They probably know it has something to do with abortion. But, I actually had no idea that it had been argued on the 14th Amendment and how that has a due process clause. And it talks about rights not actually in the Constitution that need to be deeply rooted in the history and tradition of the nation. Canada doesn’t actually do things that way. Yet, we have our own set of laws, or perhaps we don’t have laws, even though we probably should, on abortion. How do things work here?
Michael T. Mulligan [00:00:51] Yeah, that’s a really good question. And I must say that leaked decision has caused, much discussion and consternation in Canada about exactly that. What is the state of the law here and how did we get here?
Adam Stirling [00:01:03] Yeah.
Michael T. Mulligan [00:01:04] And so the history of it is during the 18th and early 19th century, prior to Confederation, abortion was generally legal in the colonies. There was an act, a British act, which I must say is a great name. Although maybe the outcome wasn’t ideal, called the Militia Shooting or Stabbing Act of 1803.
Adam Stirling [00:01:27] Ahh. Yes.
Michael T. Mulligan [00:01:28] You know, you don’t want to have a militia stabbing, really. And that act made it interestingly an attempting to perform an abortion post quickening, so after 15 to 20 weeks of pregnancy, became a death penalty offence.
Adam Stirling [00:01:46] Interesting.
Michael T. Mulligan [00:01:46] Which is the interesting state of affairs I suppose given the modern language of pro-life. Perform an abortion, we will kill you.
Adam Stirling [00:01:54] Yeah.
Michael T. Mulligan [00:01:55] And so in Canada then, the history of it is that a couple of years after Confederation in 1869, the Criminal Code was amended to essentially criminalize the performing of an abortion. And so, the law stood for one hundred years until 1969. And then in 1969, Trudeau senior and company amended the criminal code to permit abortions, but only if a woman’s life or health was in danger. And then that had to be confirmed by a committee of three or more doctors. How that actually played out varied all across the country because the concept of “women’s health” wasn’t defined.
Adam Stirling [00:02:41] Hmm.
Michael T. Mulligan [00:02:41] And so it could be mental health or physical health. And the availability of abortion services across Canada was all over the map. But it required a committee of doctors to certify that the woman’s health or life was in danger, and then came along. Dr. Morgentaler, who was an advocate for abortion and performed them openly. And he was charged criminally with doing so because he would do it without getting the permission of a committee of doctors. And in fact, he was charged, and he was acquitted three times by juries.
Adam Stirling [00:03:21] Wow.
Michael T. Mulligan [00:03:21] Even though he just admitted, yes, I did this. And that’s an important thing to remember about the importance of the jury system. Right? The jury system brings a community value to decisions in criminal cases that may be quite different from what the text of the law would be. Right. Because you had cases where it was very clear what he was doing was in breach of the Criminal Code. There would be a trial and the jury would just say, not guilty.
Adam Stirling [00:03:51] Yeah, I suppose that is a problem.
Michael T. Mulligan [00:03:53] Yeah, juries don’t have to give reasons for their decision. They just make a decision.
Adam Stirling [00:03:58] hmm.
Michael T. Mulligan [00:03:58] And part of that brings that and there’s a long history of that in our legal tradition of juries tempering what might be required by the letter of the law. And so, what happened eventually, usually in Quebec, that’s where the jury trials occurred. There was an appeal by the Crown, and it went to the Court of Appeal. And one of those cases where the jury acquitted him and the Court of Appeal there overturned the acquittal of the jury and substituted a conviction, which is think about that for a moment. That was permitted by the Criminal Code in terms of the appeal provisions, that a court of appeal could substitute a conviction, even though the jury had acquitted. That, by the way, produced such public outrage that there was what was referred to as the Morgentaler amendment to the Criminal Code. And that amendment amended section what is now 686 of the Criminal Code that sets out powers of a court of appeal. And now as a result of that amendment that flowed from the Court of Appeal convicting him after the jury had acquitted him, Dr. Morgentaler, Courts of Appeal lost the ability to do that.
Adam Stirling [00:05:12] hmm.
Michael T. Mulligan [00:05:12] And so now if the Crown appeals an acquittal, by a jury arguing there were some legal error or other problem, the Court of Appeal could order a new trial. But they cannot simply convict the person, despite the fact that the jury is acquitted somebody. And that’s, again, I think, an important protection. Right. Because, again, juries bring that community value to the justice system. You’ve got twelve random ordinary people making a decision about something. And in some cases, juries may simply say, I’m not convicting somebody of that offence. And so that’s now the state of the law. And it’s another thing that flowed from the Dr. Morgentaler’s litigation over the years. He then got to the Supreme Court of Canada on the first occasion, challenging the constitutionality of the criminal code provisions as they existed post 1969; requiring this committee to decide if a woman could get an abortion. And the timing of that is interesting. Roe versus Wade, the U.S. Supreme Court case that found there was a constitutional right to abortions, depending on the timing of them, the states couldn’t stop that. That decision was in 1973, and it’s been the state of the law in the United States since then.
Adam Stirling [00:06:30] yeah.
Michael T. Mulligan [00:06:30] And what leaked out is a parent decision or draft decision by the conservative judges on the U.S. Supreme Court looking to reverse that or planning to reverse it. But in Canada, Dr. Morgentaler got to the Supreme Court of Canada two years later in 1975, arguing that the Canadian law was also unconstitutional. And on his first effort to do that, he failed. And that is because in 1975, we didn’t have a charter in Canada. And so, the arguments that he was able to make involve the issue of division of powers.
Adam Stirling [00:07:07] mm-hmm.
Michael T. Mulligan [00:07:07] Right. Because there’s some authority of the provinces over some of the federal government has.
Adam Stirling [00:07:10] Yes.
Michael T. Mulligan [00:07:11] And there was at that time a thing called the Bill of Rights was kind of a predecessor to the charter.
Adam Stirling [00:07:15] Yeah.
Michael T. Mulligan [00:07:16] But it didn’t it didn’t work. It didn’t succeed. The Supreme Court of Canada found. No, this is a valid exercise of criminal law power. And unlike in the United States, this is lawful, the criminalization of abortion.
Adam Stirling [00:07:29] Interesting.
Michael T. Mulligan [00:07:30] But that wasn’t the end of it, because, of course, we got a charter.
Adam Stirling [00:07:33] Yeah.
Michael T. Mulligan [00:07:33] And he went back to the Supreme Court of Canada. Post Charter. And in 1988, the Supreme Court of Canada found that the Criminal Code provisions, which made procuring an abortion a criminal offence to be unconstitutional and in violation of Section 7 of the Charter, the security of a person, life, liberty, security of the person. Revision of the charter.
Adam Stirling [00:08:00] Yes.
Michael T. Mulligan [00:08:00] And as a result, the Supreme Court of Canada struck down the Criminal Code provisions against an abortion. And following that, there were two attempts by the Conservative government, led by Brian Mulroney at the time, to re criminalize it. And there was an election where it was a central issue and post-election, the conservative federal Conservative Party in fact passed legislation which would have re criminalized performing an abortion where a woman’s health was not at risk. And it passed as Bill C43. And that legislation passed in 1990, if I got that right, passed in the House of Commons and then in the Senate there was a tie vote because of, of course, Liberal senators there and the rules of the Senate or the win lose a tie vote. It doesn’t pass. And so, by that margin of tying in the Senate, that didn’t become law. And there hasn’t been legislation in the criminal code dealing with abortion ever since. And so, it means that Canada is the only developed country in the world which has no federal legislation with respect to abortion. And it is simply left like any other medical service that there would be various rules and regulations that, you know, medical associations might have about it.
Adam Stirling [00:09:30] Yes.
Michael T. Mulligan [00:09:30] But there is no provision in the criminal code, no federal provision at all. And of course, you don’t need some provision authorizing you to do something. That’s not how the world works here.
Adam Stirling [00:09:40] No.
Michael T. Mulligan [00:09:41] You don’t need to go cap in hand to the government, you know. Please kind sir, may I go and do something? The state of affairs is if it’s not prohibited, you’re free to do it.
Adam Stirling [00:09:51] Yes.
Michael T. Mulligan [00:09:51] And so that’s the state of affairs. And I should say there’s you know, naturally there is much political talk about this coming decision on Roe versus Wade in the United States and talk about need to protect things and so on. But it’s important to remember, you don’t need some law telling you that you’re allowed to go and do something. That’s not how our legal system operates. The state of affairs is there is nothing prohibiting it. There is no provision in the Criminal Code that stops you from doing that. And so, it’s not an offence and so you can simply carry on. And so, you don’t need to look to government for permission. It is simply not an offence in Canada. We don’t regulate in that way. There are interesting provisions in the Criminal Code dealing with things like, when the things people talk about as a legal issue is, you know, when does life begin? Right. There’s an answer to that in the Criminal Code. We’ve defined it.
Adam Stirling [00:10:48] Where.
Michael T. Mulligan [00:10:49] In section 223 of the Criminal Code.
Adam Stirling [00:10:52] No, I mean, where does it begin?
Michael T. Mulligan [00:10:53] Oh, good question. Well, here it is, at least legally in Canada.
Adam Stirling [00:10:57] Yeah.
Michael T. Mulligan [00:10:57] It says, “a child becomes a human being within the meaning of this Act when it is completely preceded, in a living state, from the body of its mother whether or not (a) it is breathed, (b) it has independent circulation; or (c) the navel string is severed.” And then it says killing a child. “A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.” One of the implications of that is that if somebody, for example, attacks a pregnant woman.
Adam Stirling [00:11:30] Yeah.
Michael T. Mulligan [00:11:31] Causing injury to a fetus and then the child, a fetus, is born and dies as a result of the injuries suffered in the attack. It’s a homicide. Which is a very interesting state of affairs. That’s the implication of that section of the Criminal Code. So, we have, at least in a legal sense in Canada, defined that for the purpose of determining when somebody might be guilty of committing a homicide if they were to cause injury to a fetus who was which was later born, defined there, and then there’s a death resulting from the assault. But we do not have any provision in the Criminal Code any longer dealing with abortion. And again, people are free to do what isn’t prohibited. And so, you don’t need to look to government for some permission to do what you are permitted to do.
Adam Stirling [00:12:24] And there we have it, the state of the law here in Canada. We’ll take a quick break. Legally Speaking, we’ll continue in just a moment with Michael Mulligan from Mulligan Defence Lawyers.
[00:12:32] Legally Speaking continues here on CFAX 1070, joined by Michael Mulligan from Mulligan Defence Lawyers. I note that, Teal seal, I should say, Teal Cedar Products, I should say, is back in the news suggesting that there’s something involving protesting. Michael, what’s the story?
Michael T. Mulligan [00:12:46] Yes, indeed. And what’s going on at the moment is that there’s a long list of people who have been charged with criminal contempt for allegedly breaching the injunction with respect to blocking logging. And so those cases are going ahead, up in Nanaimo. And one of them, interestingly, resulted in an acquittal just a few days ago.
Adam Stirling [00:13:12] Hmm.
Michael T. Mulligan [00:13:13] And they’re reading that it was an interesting lesson in the answer to what can go wrong potentially in the enforcement and prosecution of injunctions.
Adam Stirling [00:13:22] What happened?
Michael T. Mulligan [00:13:24] So what happened is that the injunction, of course, was issued, but and there was this individual who was charged with breaching it. But to get a conviction for criminal contempt, you need to show, first of all, that the person was aware of the injunction. Right.
Adam Stirling [00:13:39] mm-hmm.
Michael T. Mulligan [00:13:39] We don’t convict people of doing things that they don’t know is not, are not permitted. Then you have to prove that they actually breached it. And so, one of the issues that arose was trying to prove, did this particular person have knowledge of the injunction? And the crown tried to argue that, well, look, the injunction is posted all over social media, but the judge said, well, I don’t have any evidence that this particular accused was on social media or read the injunction on social media. So that’s not going to do it. The injunction apparently wasn’t handed out or posted in some way for this person. The evidence was that the police had developed a script which they were reading to people, and the script didn’t, unfortunately, mirror all of the elements of what the injunction actually said. The script that the RCMP had come up with, use language telling people about things like they couldn’t blockade or blocking the road wasn’t permitted.
Adam Stirling [00:14:37] Hmm.
Michael T. Mulligan [00:14:37] There were other things included in the injunction, but the script didn’t include everything. And so, the evidence was, and it was on videotape.
Adam Stirling [00:14:44] Yeah.
Michael T. Mulligan [00:14:44] This particular individual was, had a drum and was banging the drum. While the police were reading this summary. Talking about you can’t, you can’t blockade. No blockading. And the individuals banging the drum and then on the video walks across the road. this person’s not like strapped to the road,.
Adam Stirling [00:15:06] No.
Michael T. Mulligan [00:15:06] crazy glued themselves down. They’re banging a drum. They walk across the road. After walking across the road, they say to the police, you are going to have to arrest us before you walk through us. So, they didn’t say that. But then the person standing on the other side of the road banging away on his drum, not on the road. And then the individual walks back across the road, still banging away on his drum. And 15 seconds after the police finished reading their script about, you can’t blockade, arrest him.
Adam Stirling [00:15:37] Hmm.
Michael T. Mulligan [00:15:37] And so the couple of issues, one their one problem the judge identified as well, look, it may be that you weren’t allowed to walk across the road. Maybe that impeded something that you might have been contrary to the injunction, but that wasn’t in the script you told people you couldn’t blockade. And second of all, if you get past that which the judge couldn’t get past, is walking across the road a blockade.
Adam Stirling [00:16:00] Yeah.
Michael T. Mulligan [00:16:01] You’ve just crossed the road, banging the drum. And so, in this case, the judge was not satisfied beyond a reasonable doubt that the person had knowledge of the provisions of the injunction that might have prohibited walking across the road, banging a drum, and what he was told, was about blockading. And it was unclear that walking across the road constituted blockading. And so, he was found not guilty. And so, I guess there are a couple of possible future takeaways. One is that might be a good idea to hand out the actual injunction rather than summarizing it. But we should also bear in mind, and this was canvassed when this injunction was put in place,.
Adam Stirling [00:16:40] mm-hmm.
Michael T. Mulligan [00:16:40] Some of the things that the injunction would prohibit, like blocking a road.
Adam Stirling [00:16:44] Yeah.
Michael T. Mulligan [00:16:44] Right, to stop people from, you know, doing what they have a right to do on the road to work is already a criminal offence.
Adam Stirling [00:16:51] Yeah.
Michael T. Mulligan [00:16:51] And you don’t need to prove the person had knowledge of the criminal code. We’re all imbued from a legal case.
Adam Stirling [00:16:58] Okay.
Michael T. Mulligan [00:16:58] With knowledge of the Criminal Code.
Adam Stirling [00:16:59] I was curious about that. Okay. So, if it’s an injunction, they need to know. But if it’s the criminal code, they don’t. Okay, I understand.
Michael T. Mulligan [00:17:06] Okay. So, if you’re if somebody crazy glues themselves to the Trans-Canada Highway, right?
Adam Stirling [00:17:10] Yeah.
Michael T. Mulligan [00:17:11] You don’t need to prove that they had knowledge of the section in the criminal code that prohibits that.
Adam Stirling [00:17:15] Okay.
Michael T. Mulligan [00:17:16] But if you’re trying to prove that they breached a specific injunction, you need to show they knew about the terms of the injunction. So, like you gave it to them, or they had a copy of it or something.
Adam Stirling [00:17:25] Yeah.
Michael T. Mulligan [00:17:26] But if all you have is well, this was posted on social media, and I read you a summary while you were banging your drum that may not get there.
Adam Stirling [00:17:34] It’s just such a comedy act. It’s just. Yeah.
Michael T. Mulligan [00:17:38] The judge also specified the rate at which he was banging the drum was one or two beats per second, I think. So, he was really going to town on the drum. But.
Adam Stirling [00:17:45] As the tension rises. Boom, boom, boom, boom, boom, boom, boom.
Michael T. Mulligan [00:17:48] Boom, boom. That was the outcome, at least of one of the cases on the prosecution’s carry on one after the next. So, a couple of takeaways there.
Adam Stirling [00:17:56] We talk about credibility often in politics and in media, but it has a very specific meaning in the legal world. This next story touches on that.
Michael T. Mulligan [00:18:05] It sure does. And this arises frequently in criminal prosecutions, because with some frequency, criminal cases are based on facts where there are only two possible witnesses to what went on, the accused and the complainant. Right. Unlike TV shows, there isn’t usually some DNA evidence that’s going to prove what happened one way or the other or a videotape of it. Although I guess the videotape didn’t help. In that Teal Cedar products case.
Adam Stirling [00:18:35] No.
Michael T. Mulligan [00:18:37] Often cases are based on a complainant saying, for example, you know, she hit me in the head. Right. And the accused saying, I didn’t do that. Right.
Adam Stirling [00:18:46] Yeah.
Michael T. Mulligan [00:18:47] And so sometimes people think, well, how does this work? It’s just a she said/she said, or he said/she said, how is that supposed to be sorted out? And in ordinary life, often, if somebody if you hear two stories, you would kind of pick one. Right.
Adam Stirling [00:19:01] Yeah.
Michael T. Mulligan [00:19:01] Okay, well, let’s hear what you have to say. What do you have to say? I don’t believe you. I believe you. Right. I prefer what you have to say. And that will be the legal test. If you were suing somebody for money, right.
Adam Stirling [00:19:11] Yeah.
Michael T. Mulligan [00:19:11] Probably would be good enough. But in a criminal case, you have to prove beyond a reasonable doubt somebody committed the offence.
Adam Stirling [00:19:18] Hmm.
Michael T. Mulligan [00:19:18] And so there is a method that judges are directed to apply, and juries would be told to apply as well when they’re assessing credibility, in a case where an accused person testifies to the effect of, I’m innocent, I didn’t do it. I didn’t hit her on the head. And the way that’s to work; and it’s a function of the concept of presumption of innocence. So, you need to prove something beyond a reasonable doubt is a judge needs to ask himself, first of all, do you believe the person? Because if you believe the person, when they say, I didn’t hit her on the head, well, that’s the end of the enquiry, right? That’s much more than a reasonable doubt.
Adam Stirling [00:19:54] Yeah.
Michael T. Mulligan [00:19:54] But if the judge doesn’t believe the person, they then must ask themselves might they be telling the truth. Right. Because there can be a circumstance where you say, I’m not absolutely sure that person is telling me the truth, but I can’t say otherwise. Their evidence was internally consistent, not contradicted by anything else. So maybe they were. And again, the judge has to acquit. And then it’s only if the judge doesn’t believe the person isn’t left with any doubt, you know, isn’t even left with a doubt they might be telling the truth. Would a judge then go on to assess are they satisfied by the evidence they do accept? Like go then and analyze the evidence of the complainant. And there can be circumstances where a judge listens to the accused and utterly reject what you have to say. It’s totally incredible. I put it aside, but then analyses the evidence of the complainant and comes to a similar conclusion. Right. I just don’t believe you either. I don’t know what happened here.
Adam Stirling [00:20:46] hmm.
Michael T. Mulligan [00:20:46] And again, there would be a requirement to acquit. And that all comes from a case called Regina versus W.D.
Adam Stirling [00:20:51] mm-hmm.
Michael T. Mulligan [00:20:51] But there was a new case that came out just a short time ago from the Supreme Court of Canada, where the judge reversed all of that and started their analysis by analyzing the evidence of the complainant, rather than analyzing the evidence of the accused. Right. And then that raised the issue of, well, look, has the judge now done exactly what they’re told not to do in case in that case, Regina versus W.D..
Adam Stirling [00:21:17] Yeah.
Michael T. Mulligan [00:21:17] But if you start your analysis with, do you believe the complainant? And if you say, yes, I do, and then you convict on that basis means, well, hold on a minute. You know what, what have you just done there?
Adam Stirling [00:21:28] Yeah.
Michael T. Mulligan [00:21:28] And so the Supreme Court of Canada was struggling with, you know, should the case be,, the conviction be overturned because of what order the judge did it in.
Adam Stirling [00:21:36] Yeah.
Michael T. Mulligan [00:21:37] And ultimately, the Supreme Court of Canada said, well, that doesn’t really conform with W.D. when you sort of read it in that way. But we have to presume that judges know what they’re doing. And the judge in that case did refer to Regina versus W.D.. So even though the judge seemed to do it in a backwards way.
Adam Stirling [00:21:54] Yeah.
Michael T. Mulligan [00:21:55] The Supreme Court of Canada was prepared to accept that the judge did the proper analysis. But for many people, the real important takeaway here is that criminal cases are not a matter of she said/she said, or he said/she said, right. It’s never just a who do I like better?
Adam Stirling [00:22:11] No.
Michael T. Mulligan [00:22:12] Right. The analysis is always, is there any or is there a reasonable doubt about?
Adam Stirling [00:22:17] Yeah.
Michael T. Mulligan [00:22:17] And how we assess credibility reflects that. And so that’s the state of the law in Canada.
Adam Stirling [00:22:21] Fascinating. Michael Mulligan with Mulligan Defence Lawyers second half of our second hour every Thursday here on CFAX 1070. I learn new things every week. Michael, thank you as always.
Michael T. Mulligan [00:22:31] Thank you so much. Have a great day.
Adam Stirling [00:22:32] You too. See you next week. Bye now.
Automatically Transcribed on May 6, 2022 – MULLIGAN DEFENCE LAWYERS